CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .sA36B60A1 { font-family:Arial; font-style:italic } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } Communicated on 19 September 2016   THIRD SECTION Application no 44309/06 Olga Vitalyevna KUSTOVA against Russia and 9 other applications STATEMENT OF FACTS The applicants are Russian nationals. A.     The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows.   1.     Application no.   44309/06, lodged on 5 October 2006 by Olga Vitalyevna Kustova [1] , who was born on 6   August 1979 and lives in Krasnoyarsk. She is represented by Nadezhda Nikolayevna Shcherbatyuk, a lawyer practising in Krasnoyarsk. The police stopped the applicant’s car; the applicant tested positive for alcohol. A police officer compiled an administrative offence record, mentioning the applicant’s home address and indicating that the case would be examined by a justice of the peace of the Leninskiy District Court on 10   February 2006. On 10 February 2006 the applicant sought an adjournment, but the Leninskiy District Court informed her that they had no administrative offence case pending in respect of her. It then emerged that on the same day a justice of the peace within the Sovetskiy District Court had examined the case and banned the applicant from driving for one year and five months. No other parties had been present at the relevant hearing. Having received a copy of the judgment, the applicant appealed. Apparently, the applicant was not notified of the date and time of the appeal hearing. On 11 April 2006 the Sovetskiy District Court upheld the judgment of the justice of the peace. The appeal court stated that it followed from the administrative offence record that the applicant had been aware of the examination of the case before the justice of the peace. The appeal decision contained a notice suggesting that the applicant had been notified, by registered mail, of the appeal hearing, but had failed to attend. No other parties had been present at the appeal hearing. The applicant applied for supervisory review. On 3 July 2006 the Krasnoyarsk Regional Court dismissed that application.   Complaint : The applicant complains under Article 6 of the Convention that she was not properly notified of the trial hearing.   2.     Application no.   16222/07, lodged on 3   February 2007 by Grigoriy Sergeyevich Grekhov, who was born on 12   August 1961 and lives in Chelyabinsk. According to the applicant, he parked his car next to a block of flats and put the engine in for repairs. On 18 May 2006, having learned that the police had arrived to check whether the car was stolen, he arrived at the place where the car was parked wearing a T-shirt and slippers and was accused of drunk driving under Article 12.8 of the CAO. The police compiled an administrative offence record for this offence and ordered the applicant to undergo a medical examination. Allegedly, the on-duty doctor told the police that he had no devices for checking alcohol consumption but, after a short talk with the police, he issued a certificate indicating that the applicant was drunk. There is no indication that the applicant was made aware of his right to remain silent/privilege against self-incrimination or the right to legal assistance, or that he made any self-incriminating statements or admissions at the pre-trial stage of the proceedings. On an unspecified date the case was submitted to the justice of the peace. Between 31 May and 3 July 2006 the applicant was working temporarily in another town. Before his departure the applicant wrote to the justice of the peace notifying him of his absence and indicating that he would like to be present during any trial hearing. This letter was received on 5 June 2006. On an unspecified date the court dispatched a hearing notification which was then returned to the court as undelivered. By a judgment of 5 June 2006 the justice of the peace convicted the applicant and banned him from driving for eighteen months. The court noted that the applicant had been “properly notified of the hearing but had failed to attend it”. No hearing was held since no parties attended. Allegedly, the applicant learned of the above judgment in September 2006 when he was stopped by the police. He obtained a copy of the judgment on 3 October 2006. The applicant appointed Mr B. as his representative; he appealed to the Kurchatovskiy District Court of Chelyabinsk, pleading not guilty. According to the case file, on 27   October 2006 the court’s assistant telephoned the applicant at home and notified him in person of the appeal hearing listed for 8 November 2006; on 28 October 2006 B. telephoned the court’s registry and was notified of the appeal hearing date; on 8   November 2006 during a telephone conversation the applicant informed the registry that he was on sick leave and asked that the appeal be examined in his absence. According to the applicant, between 23 October and 24 November   2006 he was working out of town and could not have received or made the phone calls on 27 October and 8 November 2006 respectively; B. did not and could not have called the registry on 28 October 2006, which was a Saturday; he did not waive his right to be present on 8   November 2006. On 8 November 2006 the District Court upheld the judgment. The appeal court considered that the applicant had been properly notified of the appeal hearing; that he had not attended, but had asked to have the case examined in his absence; and that in any event his presence was not indispensable for the proper examination of the case. The appeal court also held that the applicant’s guilt in respect of drunk driving was proven by the administrative offence record.   Complaints : The applicant complains under Article 6 of the Convention that he was not provided with legal assistance at the initial stage of the proceedings; he complains of lack of proper notification of the hearings and refusals to adjourn, despite a valid reason; and also of falsification of evidence and manifest arbitrariness.   3.     Application no.   27571/08, lodged on 8   May 2008 by Aleksandr Ivanovich Klochkov, who was born on 30   May 1952 and lives in Omsk. On 3 March 2008 a justice of the peace convicted the applicant of drunk driving and banned him from driving for eighteen months. The applicant appealed on unspecified grounds. On 8   April 2008 the Kirovskiy District Court of Omsk upheld the judgment. None of the parties were present at the appeal hearing. The appeal decision made no mention of proper notification.   Complaint : The applicant complains under Article 6 of the Convention that he was not notified of the appeal hearings.   4.     Application no.   39973/08, lodged on 17   June 2008 by Aleksandr Andreyevich Bibanin, who was born on 28   February 1959 and lives in Divnomorskoye. On 24 January 2008 a justice of the peace convicted the applicant of a traffic offence under Article 12.15 of the CAO and banned him from driving for four months. On 15 February 2008 the Gelenzhik Town Court upheld the judgment in a summary manner. The applicant received a copy of the appeal decision on an unspecified date. The applicant complained that there had not been effective notification. On 11   April 2008 the Town Court acknowledged that the case file contained no evidence that he had been duly summoned, and that for this reason the courtroom official had been issued with a reprimand.   Complaint s: The applicant complains under Article 6 of the Convention that he was not afforded an opportunity to participate in the appeal hearing because he was not summoned; that his conviction was not supported by any evidence, and that the presumption of innocence was not properly refuted.   5.     Application no.   18507/09, lodged on 5   March 2009 by Andrey Sergeyevich Kozlov, who was born on 27   October 1976 and lives in Verkhnyaya Pyshma, Sverdlovsk Region. On 15 June 2008 the police compiled an administrative offence record for a traffic offence, and issued summonses for a hearing before a justice of the peace of district no. 2 on 23 June 2008. The applicant attended on that date but was told that no file had been submitted to the court for adjudication. Thereafter, the applicant telephoned the court several times and was told that no proceedings were pending in respect of him. By a judgment of 10 July 2008 the justice of the peace in district no.   3 convicted the applicant and banned him from driving for four months. The applicant had not been notified and had not participated in any oral hearing. The applicant learned of his conviction later. In August 2008 he received a copy of the judgment. He retained a lawyer and appealed. On 2 September 2008 the Berezovskiy Town Court heard evidence given by the lawyer, and upheld the judgment. The appeal court was satisfied that the notification of the trial hearing had been dispatched to the applicant from district no. 3. The applicant sought supervisory review of the above court decisions. He complained, inter alia , that he had not been afforded an opportunity to participate in the trial proceedings, and that the trial court had had no jurisdiction in his case. On 29 October 2008 the Sverdlovsk Regional Court upheld the above court decisions on supervisory review.   Complaint : The applicant argues that the non-notification of the trial hearing entailed a violation of Article 6 of the Convention.   6.     Application no.   58026/09, lodged on 12   October 2009 by Anton Sergeyevich Fedorov, who was born on 26   April 1984 and lives in Moscow. The applicant’s car was stopped by traffic police. The applicant was accused of a traffic offence and received a summons to a hearing on 15   May 2009 before a justice of the peace. On 15 May 2009 the justice of the peace examined the applicant. Further hearings were held on 25 May and 1 June 2009. On this last date the applicant was convicted and banned from driving for four months. The applicant appealed to the Shchelkovskiy Town Court. On 25   June 2009 he received notice of an appeal hearing listed for 24 June 2009. In the meantime, by a decision dated 24 June 2009, the Town Court upheld the judgment. The appeal court considered that the applicant had been properly apprised of the appeal hearing. The file contains a Town Court letter of 16 June 2009 enclosing the appeal decision of 24 June 2009.   Complaint : The applicant alleges that he was summoned to the appeal hearing the day after it had been held or was meant to be held.   7.     Application no.   56109/13, lodged on 19 August 2013 by Olga Stanislavovna Kapustina, who was born on 26 May 1961 and lives in Saratov. On 27 September 2012 a justice of the peace convicted the applicant of an offence under Article 17.8 of the CAO (impeding enforcement proceedings by a bailiff) and sentenced her to a fine of RUB 1,000. The court noted that the applicant had been notified of the hearing by registered mail and had not informed the court of the reasons for her absence from the hearing. On 19 December 2012 the Volzhskiy District Court of Saratov upheld the judgment. The applicant was not present at the appeal hearing. The applicant received the appeal decision on an unspecified date. On 19 February 2013 the Saratov Regional Court rejected a further appeal by the applicant on points of law. The applicant received this decision on an unspecified date. The applicant did not lodge a further appeal on points of law before the Supreme Court of Russia.   Complaint : The applicant complains under Article 6 of the Convention that she was not afforded an opportunity to participate in the trial and appeal hearings.   8.     Application no.   73418/13, lodged on 16   November 2013 by Igor Olegovich Popovskiy, who was born on 1   May 1976 and lives in Moscow. Allegedly, the applicant refused the Federal Security Service’s request that he provide them with information obtained from his client in a criminal case. At the beginning of his next visit to his client on 12 March   2013, detention facility staff searched his bag. The applicant was accused of an offence under Article 19.12 of the CAO (transfer of prohibited items to detainees). On an unspecified date the case was submitted for trial before a justice of the peace. On an unspecified date the applicant was notified of a hearing listed for 11   April 2013 at 10   a.m. At 9.36 a.m. on that date he sent an email to the court enclosing documents relating to his (sudden) illness and inability to attend the hearing. By a judgment of the same date the justice of the peace convicted the applicant and sentenced him to a fine of 3,000 Russian roubles (RUB). The court had dismissed the request for adjournment because the applicant had not submitted any medical evidence to confirm an acute illness. On 17 May 2013 the Tverskoy District Court of Moscow examined the applicant and upheld the judgment.   Complaint : The applicant complains under Article 6 of the Convention in relation to the refusal to adjourn the trial hearing.   9.     Application no.   3620/14, lodged on 23   November 2013 by Svetlana Mikhaylovna Vikulova, who was born on 13   December 1965 and lives in Petropavlovsk-Kamchatskiy. The applicant was accused of an offence under Article 14.16 of the CAO (violation of the regulations on sale of alcoholic beverages). The case was listed for trial before the Petropavlovsk-Kamchatskiy Town Court of the Kamchatka Region. A hearing listed for 12 April 2013 was adjourned at the applicant’s request in view of severe weather conditions. On an unspecified date the court issued summonses for 24 April 2013 by way of a telephone call. Allegedly, from 10 to 28 April 2013 the applicant was abroad and did not receive any such call. On 24 April 2013 the Town Court convicted the applicant and sentenced her to two penalties: a fine of RUB 3,000 and confiscation of the impugned alcoholic beverages. The court noted in the judgment that the applicant “had been notified of the hearing but had failed to submit any reason for her absence”. On 26 June 2013 Judge K. of the Kamchatka Regional Court upheld the judgment. On 6 September 2013 Ku., deputy President of the Regional Court, dismissed an appeal on points of law. The appeal decision contains no findings relating to the applicant’s being notified or her absence from the appeal hearing. On 23 October 2013 the Supreme Court of Russia upheld the lower courts’ judgments.   Complaint : The applicant complains under Article 6 of the Convention that she was not apprised of the appeal hearing.   10.     Application no.   12307/16, lodged on 11 February 2016 by Vyacheslav Viktorovich Korchagin, who was born on 10 October 1977 and lives in the town of Liski, Voronezh Region. The applicant runs a business as an “individual entrepreneur”. On 6   August 2014 the Consumer Protection Agency ( Rospotrebnadzor ) compiled an administrative offence record accusing the applicant of non ‑ compliance with technical regulations on storage of products (Article   14.43 of the CAO). On 10   December 2014 the Commercial Court of Voronezh Region acquitted the applicant. On 12 March 2015 the 19 th   Commercial Appeal Court quashed that judgment, found the applicant guilty, and imposed a fine of RUB 20,000. This appeal decision became final and enforceable on the same date. The applicant sought a review in cassation. On 6 October 2015 the Commercial Court of the Central Circuit upheld the appeal decision. The reviewing courts considered that the decision to start proceedings had been dispatched to the applicant but that he had avoided being served with judicial notifications, but he was able to continue to keep himself informed, via the court’s website, of the appeal proceedings after the first-instance judgment against him (see Relevant domestic law and practice below). The above decision was amenable, within two months, to a second cassation appeal before the Supreme Court of Russia. On 30   December 2015 the Supreme Court upheld the appeal decision and the cassation decision.   Complaint : The applicant complains under Article 6 of the Convention that he was not adequately notified about the trial and appeal hearings. B.     Relevant domestic law and practice 1.     Public and oral hearing (a)     In cases examined by courts of general jurisdiction As a rule, administrative offence cases should be examined at a public hearing (Article 24.3 of the CAO). Article 25.1 of the CAO provides that a defendant has the right to be present during the hearing (Article 25.1 of the CAO). The case may be examined without the defendant being present if the available evidence confirms that there has been proper notification about the date and place of the hearing and if the defendant has not sought an adjournment, or if a request for an adjournment has been rejected. The defendant’s presence may be declared mandatory. Where the defendant incurs the penalty of administrative detention, administrative expulsion or mandatory community service his or her presence at the hearing is mandatory. In December 2011 Article 25.15 of the CAO was adopted. It specifies that people involved in an administrative offence case, including the defendant and his lawyer, should be notified or summoned by registered letter with acknowledgment of receipt, by summonses with acknowledgment of receipt, by a telephone message or a telegram, by fax, or by other means that ensure the tracing of contact and receipt. When starting examination of the case the judge or the competent authority must ascertain that the defendant, his lawyer and other people involved in the case have been notified; if they are absent the judge must clarify the reasons for their absence and decide whether it is appropriate to examine the case in their absence or to adjourn (Article 29.7 of the CAO). On appeal, the reviewing court or authority must clarify the reasons for their absence and decide whether it is appropriate to review the case in their absence or to adjourn (Article 30.6). The Supreme Court of Russia specified that the above provisions also imply that in appeal proceedings the reviewing court or authority must ascertain, with reference to appropriate evidence, that the defendant has been properly notified of the review hearing (decision no. 18-AD06-4 of 12 May 2006; decision no. 2-AD10-6 of 29 October 2010; and decision no. 18-AD15-47 of 29 December 2015). As regards (supervisory) review of the final court decisions: Article   30.15 was adopted in 2008, and provides that the reviewing judge must notify the defendant and the victim about the review request, and must afford them an opportunity to know the contents of the request and to lodge observations on it. No oral hearing is necessary in the review proceedings before a regional court and before the Supreme Court of Russia, since it is only an additional remedy protecting rights and freedoms (Plenary Supreme Court of Russia, ruling no. 5 of 24 March 2005, section 34 as amended; Constitutional Court, decision no. 598-O of 3 April 2012 and decision no.   501-O of 23 April 2013). (b)     In cases examined by commercial courts A commercial court must notify interested parties of any decision to register a claim launched against them or a decision to start proceedings on such a claim (Article 121 § 1 of the Code of Commercial Procedure, CComP). Before holding a hearing in a case the court must ascertain that the parties have received the first judicial act taken in this case: this would normally be the decision to start proceedings (Articles 121 § 6 and 123 of the CComP). Participants in commercial court proceedings are expected to show diligence and to keep themselves aware of the advancement of the proceedings. They bear the burden of consequences that may ensue from taking a certain procedural action or from omitting to take it (Articles 9 §   1 and 41 of the CComP). 2.     Presumption of innocence Article 1.5 of the CAO provides that a defendant in administrative offence proceedings should be presumed innocent until his guilt is established, according to the procedure prescribed by the CAO and established in a final decision of an authority or a court regarding the case. The defendant is not required to prove his innocence. The latter provision was amended in 2007 to say that there are exceptions to it for offences under Chapter 12 of the CAO (traffic offences) where such offences are recorded by way of special technical means such as photo- or video ‑ recording. 3.     Scope of review Article 30.6 of the CAO provides that a judge in appeal proceedings or an authority reviewing a decision on an administrative charge is not restricted to the arguments raised in the appeal, but must/may examine ( проверяет ) the case as a whole. COMMON QUESTIONS 1.     Was Article 6 of the Convention applicable to the domestic proceedings under its criminal limb (see Mikhaylova v.   Russia , no.   46998/08, §§ 50-74, 19 November 2015) and/or its civil limb (see Becker v. Austria , no.   19844/08, § 34, 11 June 2015)?   2.1.     In view of the answer to the above question:   -     Did the defendants have a right to be present at the (trial) hearing, normally arising under Article 6 of the Convention in “criminal” cases?   -     Did the absence of the defence from the trial and/or appeal hearings violate (i) their right to a public hearing or their right to an oral hearing; (ii)   the principle of the equality of arms and the right to adversarial procedure, in particular by way of depriving the defence of an adequate opportunity to have knowledge of the adverse material submitted to the court?   -     Was there a violation of Article 6 of the Convention on account of the absent or inadequate notification of court hearings, or refusals to adjourn despite a compelling reason?   2.2.     Did the appeal proceedings provide a full rehearing of the case on questions of fact and law? If yes, were the shortcomings relating to the trial stage of the proceedings remedies on appeal (see Mikhaylova , cited above, §   94)? CASE-SPECIFIC QUESTIONS   16222/07: 1.     Did the applicant have a fair trial, as required by Article 6 § 1 of the Convention? 2.     Was his right to free legal assistance violated at the initial stage of the proceedings (see A.V. v. Ukraine , no. 65032/09, § 59, 29   January 2015)? 3.     Did the applicant’s conviction suffer from failure to rebut the presumption of innocence and from arbitrariness, noting that the conviction was solely based on the administrative offence record treated as a piece of evidence? Was there a violation of Article 6 § 2 of the Convention in this connection?   39973/08: Did the applicant have a fair trial, as required by Article 6 § 1 of the Convention? Did the applicant’s conviction suffer from arbitrariness and a failure to rebut the presumption of innocence, noting that it was solely based on the administrative offence record, which was treated as a piece of evidence? Was there a violation of Article 6 § 2 of the Convention in this connection?   12307/16: Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see by way of comparison, Abramyan and   Others (dec.), nos.   38951/13 and 59611/13, 12 May 2015, and Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009)? Should the decisions taken in cassation of 6   October and 30 December 2015 be taken into consideration for this purpose?   [1] Lopatina, her last name at the time of the events